FDA Recalls Devices Made By VIBE Technologies and Nebion LLC

Yesterday, the U.S. Food and Drug Administration issued a Class I recall of two devices: the Vibrational Integrated Bio-photonic Energizer device manufactured by VIBE technologies and the HLX8 device manufactured by Nebion LLC.

Both manufacturers claimed that their devices could cure diseases as varied as cancer and migraines. If you or someone you know used one of these devices and suffered an injury, please call us at 601.366.1297 for a free consultation. Or, you may fill out a short, confidential submission form by clicking here.

FOR IMMEDIATE RELEASE
December 15, 2008
Media Inquiries:
Siobhan DeLancey, 301-796-4668
Consumer Inquiries:
888-INFO-FDA

FDA Announces Class I Recalls of Two Unapproved Devices

The U.S. Food and Drug Administration (FDA) announced a Class 1 recall today for two unapproved and uncleared devices whose manufacturers claimed could treat various medical conditions. A Class 1 recall means that there is a reasonable probability that the use of a device will cause adverse health consequences or death.

The manufacturers, VIBE Technologies of Greeley, Colo., and Nebion LLC of Los Angeles, Calif., claimed their devices treated conditions ranging from cancer to migraines. The FDA is concerned that based upon the original health claims made by the company, patients may forgo approved therapies, and that this could result in more severe illness or death.

“These recalls underscore the importance of taking action against manufacturers who make false medical claims for their devices,” said Daniel G. Schultz, M.D., director of the FDA’s Center for Devices and Radiological Health. “One of the FDA’s primary responsibilities is protecting consumers from harm that can be caused by manufacturers who try to sidestep the approval and clearance process.”
Vibrational Integrated Bio-photonic Energizer device

On April 11, 2008, the FDA issued a warning letter to VIBE Technologies stating that the agency’s November 2007 inspection of the facility showed that the company had not obtained FDA marketing approval or clearance for the Vibrational Integrated Bio-photonic Energizer (VIBE device), which claims to treat cancer, infections, and depression. The FDA also cited the company for substantial deviations from the current Good Manufacturing Practice/Quality System regulation.

VIBE Technologies initiated a recall of 840 VIBE devices in an April 3, 2008, letter sent to users. VIBE Technologies agreed to stop promoting and marketing the VIBE device, and will contact all those who had purchased it to ensure no other unsubstantiated medical claims are being made. The FDA has requested that the company update its recall notices to state that the VIBE device is not intended for the treatment of any diseases or medical conditions.

The FDA is aware of information that suggests that the VIBE device has been used in cancer patients. There is one death that occurred in a patient who used this device. However, FDA has not verified that there is any association between the death and the VIBE device.
HLX8 device

In June 2008 FDA inspected Nebion, LLC, which revealed that the company had not obtained FDA marketing approval or clearance for the HLX8 device, which claims to treat cancer, migraines, arthritis, and ruptured discs. The inspection also uncovered substantial deviations from the Current Good Manufacturing Practice/Quality System regulation.

Nebion recalled eight HLX8 devices on July 2, 2008, and notified their customers to stop using the devices immediately and to contact Nebion for their retrieval.

Nebion’s first recall letter did not address the potential risks associated with the HLX8 device, but the company has recently notified FDA that they will issue a second letter that identifies potential health hazards. The FDA has not received any reports of injuries or deaths linked with the HLX8 device.

Under federal law, products that claim to diagnose a disease or condition, cure, mitigate, treat or prevent disease, or that are intended to affect the structure or function of the body are devices subject to FDA jurisdiction and may require FDA approval or clearance prior to marketing. Premarket approval is the most stringent type of FDA device review and is for devices with a high level of risk, such as those that support or sustain human life. FDA clearance is for lower risk devices that are shown to be as safe and effective as a similar device already on the market.

Neither VIBE Technologies nor Nebion has demonstrated to the FDA that their device is safe and effective at curing or treating diseases as claimed.

Health care professionals and consumers may report serious adverse events (side effects) or product quality problems with the use of this product to the FDA’s MedWatch Adverse Event Reporting program either online, by regular mail, fax or phone.

* Online: www.fda.gov/MedWatch/report.htm
* Regular Mail: use postage-paid FDA form 3500 available at: www.fda.gov/MedWatch/getforms.htm and mail to MedWatch, 5600 Fishers Lane, Rockville, MD 20852-9787
* Fax: (800) FDA-0178
* Phone: (800) FDA-1088

Health care professionals and patients can obtain further details about the recalls from VIBE Technologies at 970-356-9594 or Nebion LLC, at 310-215-6400.

Source

Study: Avandia Users At Higher Risk For Serious Injury Than Actos Users

If you or someone you know is currently taking Avandia, please read the article below for important information. If you believe you have been injured as a result of taking Avandia, please contact us immediately at 601.366.1297 or you may submit a short form for a free consultation by clicking here.

Safety risks higher with Avandia than Actos: study
Mon Nov 24, 2008 10:17pm EST

By Julie Steenhuysen

CHICAGO (Reuters) – Older diabetics who took GlaxoSmithKline’s Avandia to control their blood sugar had a higher risk of death and heart failure while on the drug than those who took Takeda Pharmaceutical’s Actos, a drug in the same class, U.S. researchers said on Monday.

They said the head-to-head comparison confirms prior analyses finding Avandia carries greater risks than Actos, particularly in older diabetics.

Surprisingly, the study found no difference in heart attack and stroke risks. But since 75 percent of diabetics die from heart-related causes, the researchers think heart attacks and strokes likely contributed to the overall increased deaths in the Avandia group.

“We hypothesize that many of the deaths were due to myocardial infarction (heart attack) and stroke,” Dr. Wolfgang Winkelmayer of Brigham and Women’s Hospital in Boston and colleagues wrote in the Archives of Internal Medicine.

Recent analyses of clinical studies found Avandia raised the risk of heart attacks, which has sent sales of the drug plummeting. An analysis of studies on Actos, meanwhile, suggested it reduced the risk of heart attacks and strokes.

Both Avandia, known generically as rosiglitazone, and Actos, known generically as pioglitazone, raise the risks of heart failure and carry strong warnings on their labels.

“Altogether, the picture people got was it looks like rosiglitazone might be associated with badness and pioglitazone is neutral and even beneficial,” Winkelmayer said in a telephone interview.

“For me, that left an important question open. What if you happen to directly compare those two treatments together.”

He and colleagues studied Medicare claims data from 28,361 U.S. patients older than 65 years who began taking either rosiglitazone or pioglitazone between 2000 and 2005.

ANOTHER PIECE OF THE PUZZLE

They checked for overall risk of death while taking the drug, as well as heart attacks and heart failure and other side effects in this population of older diabetics.

Of those studied, 14,260 began treatment with pioglitazone and 14,101 with rosiglitazone.

“Those who started with rosiglitazone had a 15 percent increased risk of dying from any cause compared with pioglitazone,” Winkelmayer said. They also found patients on rosiglitazone had a 13 percent great risk of heart failure compared with those on pioglitazone.

“The interesting part is that we didn’t find any difference for the risk of stroke or heart attack,” he said.

Winkelmayer thinks this may be because older diabetics are less likely to survive a heart attack or stroke. “This hypothesis we cannot test because we don’t have any cause of death data for these patients. It remains speculation.”

Glaxo disputed the findings. “This new study is inconsistent with evidence from randomized clinical trials and has significant limitations,” said company spokesman Jeff McLaughlin in an e-mail. He said the company’s long-term data suggest no increased risk of death for people taking the drug.

Safety issues raised by the study could be because of differences in the study populations, McLaughlin said, and a randomized clinical trial was the best way to settle safety questions.

Winkelmayer said the study was not a randomized clinical trial, which is the most reliable type of study, but he said the characteristics in both study populations were surprisingly similar, making the comparison quite strong.

“I think it’s one more piece of the puzzle,” he said. “It will contribute to a more compelling picture that will inform policymakers with regard to how to move forward.”

Last month, two major medical groups dropped Avandia from the list of recommended treatments for people with type 2 diabetes, the most common form of the disease.

Some 23.6 million U.S. children and adults have diabetes, according to the American Diabetes Association. Type 2 diabetes is closely linked to obesity.

(Editing by Will Dunham and Cynthia Osterman)

Source

Study: Avastin Causes Increased Risk In Blood Clots In Veins

Reuters reports that a new study shows that the cancer drug Avastin causes an increased risk (by 33%) of blood clots in veins.

The article is reprinted below.

Avastin raises risk of blood clots in veins-study
Tue Nov 18, 2008 4:00pm EST

CHICAGO, Nov 18 (Reuters) – An analysis of 15 clinical trials involving Roche (ROG.VX: Quote, Profile, Research, Stock Buzz) and Genentech’s (DNA.N: Quote, Profile, Research, Stock Buzz) popular cancer drug Avastin raises the risk of developing blood clots in the veins by 33 percent, U.S. researchers said on Tuesday.

The study shows “a significant increased risk with Avastin for patients while they are taking chemotherapy,” said Dr. Shenhong Wu of Stony Brook University Cancer Center in New York, whose study of nearly 8,000 patients appears in the Journal of the American Medical Association. (Reporting by Julie Steenhuysen; Editing by Maggie Fox and Eric Walsh)

Source

No Arbitration For American Express Where There Was No Agreement To Arbitrate

In a welcomed move, the 2nd Circuit Court of Appeals has ruled that a party (American Express) that did not sign an arbitration agreement can not compel consumers to arbitrate their claims against that party.

Hopefully, this will help end the trend of sending consumer claims into arbitration when those claims do not arise from any contractual relationship between the parties. An article detailing the ruling is reprinted below.

2nd Circuit: Plaintiffs in Credit Card Antitrust Case Cannot Be Compelled to Arbitrate

Mark Hamblett
New York Law Journal
November 11, 2008
Printer-friendly Email this Article Reprints & Permissions

Plaintiffs who claim a conspiracy by American Express to cover up an antitrust plot with other major credit card companies on foreign currency transactions won a victory as a federal appeals court said they cannot be compelled to arbitrate.

The 2nd U.S. Circuit Court of Appeals ruled the plaintiffs could not be forced into arbitration because American Express was not a signatory to the MasterCard, Visa and Diners Club credit card agreements that included the arbitration clauses.

The court’s decision came in Ross v. American Express Co., 06-4598-cv, a related case to the multidistrict class action litigation, In Re Currency Conversion Fee Antitrust Litigation, 01-md-01409, now pending before Southern District of New York Judge William Pauley.

In the multidistrict currency conversion case, cardholders are claiming that card companies and major issuing banks have engaged in a Sherman Act conspiracy to fix higher fees for transactions involving foreign currency.

In Ross, the plaintiffs are the same cardholders in the multidistrict litigation, but they are not American Express (Amex) cardholders. The Ross plaintiffs charged in their complaint that American Express plotted with the other major card companies “to fix, maintain, and conceal the artificially inflated” foreign currency fees at issue in the multidistrict litigation. They alleged that American Express was part of the “collusive arrangement between and among the MDL defendants” — in part by holding a series of meetings on including compulsory arbitration agreements “in an effort to impede consumer litigation.”

In the Ross case, Pauley held in 2005 that the plaintiffs could be compelled to arbitrate their claims, but only after a trial to determine the validity of the arbitration clauses.

The judge said “a non-signatory to an arbitration agreement may compel a signatory to that agreement to arbitrate a dispute where careful review … discloses that the issues the non-signatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed.”

The 2nd Circuit reversed in a decision by Judges Rosemary Pooler and Peter Hall and, sitting by designation, Eastern District of New York Judge David Trager. Pooler wrote for the panel.

“Arbitration is a matter of contract, but the plaintiffs have not entered into any contract whatever with Amex, let alone any contract containing an arbitration clause,” Pooler said.

So the question for the court was whether it would employ any one of a number of common law principles that would allow a nonsignatory to enforce an arbitration agreement, including equitable estoppel. The answer was no.

“The district court’s opinion improperly extends the principle of compelling arbitration through equitable estoppel to a situation where the requisite contractual basis for arbitration does not exist,” Pooler said.

Second Circuit cases applying estoppel against a party trying to avoid arbitration, she noted, have in common that nonsignatories have some kind of “corporate relationship” to a signatory, such as cases involving subsidiaries, affiliates and agents.

And the court has extended that concept beyond affiliated corporate entities to other situations, including where a nonsignatory to a construction contract could compel arbitration because it was explicitly required by the contract to perform certain tasks. That case was Choctaw Generation Ltd. P’ship v. American Home Assurance Co., 271 F. 3d 403 (2d Cir. 2001).

But there are limits, Pooler said, and those limits were exceeded here, because the case “utterly” lacked the “further necessary circumstance of some relation between Amex and the plaintiffs sufficient to demonstrate plaintiffs intended to arbitrate this dispute with Amex.”

Merrill G. Davidoff of Berger & Montague in Philadelphia represented the plaintiffs.

“We think some of the lower courts, including the lower court in this case were misapplying and ‘overapplying’ the doctrine of equitable estoppel to throw cases into arbitration that shouldn’t have been there and we think the court of appeals has appropriately reined in the application of that doctrine,” he said.

American Express spokesperson Joanna Lambert said the company was disappointed in the decision and was reviewing its options. Jonathan Jacobson of Wilson Sonsini Goodrich & Rosati argued for American Express.

Source

Danish Study: Pain Medication Doubles Risk of Second Heart Attack And/Or Death

Pain Drugs Double Risk of Second Heart Attack, Death in Study

By Nicole Ostrow

Nov. 11 (Bloomberg) — Heart attack and heart failure patients have a higher risk of a second heart attack or death if they take painkillers including the generic drug ibuprofen and Pfizer Inc.’s Celebrex, a Danish study found.

The risk doubled within the first 90 days on the painkillers Celebrex or Merck & Co.’s withdrawn Vioxx in those who had survived a heart attack or heart failure, compared with those who didn’t take the medications, according to research presented today at the American Heart Association meeting in New Orleans. Other common painkillers, such as the generics diclofenac and ibuprofen, increased the risk between 2.1 and 1.3 times.

About 8.1 million people in the U.S. have had a heart attack and 5.3 million Americans suffer from heart failure, according to the Heart Association Web site. Based on today’s findings, doctors should avoid prescribing painkillers called NSAIDS, or nonsteroidal anti-inflammatory drugs, for these patients, or give them at the lowest dose for the shortest time, researcher Gunnar Gislason said.

“The take-home message is that we need to be careful when using NSAIDs among patients with previous heart attack or heart failure, and we need to carefully consider the balance between risk and benefit when considering starting NSAID treatment in high-risk patients,” said Gislason, a senior resident in cardiology at Copenhagen University Hospital in Denmark, in an e-mail. “Even short-time treatment with NSAIDs seems to increase cardiovascular risk among these patients.”

Painkiller Popularity

The researchers analyzed the records of 58,432 patients who had a previous heart attack and 107,092 with heart failure in Denmark. Of those, 36 percent of the heart attack patients and 34 percent of the heart failure patients said they took at least one painkiller after they were discharged from the hospital.

Patients who had suffered a heart attack and were taking the painkiller Vioxx had 2.7 times the risk of having another heart attack or dying compared with patients not taking painkillers. Heart attack patients taking Celebrex had double the risk, while those with heart failure taking Celebrex had 2.3 times the risk. Heart attack patients taking diclofenac had 1.9 times the risk, while those taking ibuprofen had 1.3 times the risk, according to the study.

Pfizer spokeswoman Shreya Jani said the company couldn’t comment without seeing the study.

“We do know there will be an increased risk of dying from a heart attack in the first year after the event, regardless of NSAID use,” she said. “Since 2005, all prescription NSAIDs, including Celebrex, naproxen, ibuprofen, diclofenac and Mobic amongst others, have boxed warnings that provide important information about possible impact of these medicines on the cardiovascular systems. Patients and doctors should discuss this and other information about medicine and the patient’s health and decide what is right for each patient.”

Celebrex Risks

A study presented in March at the American College of Cardiology meeting in Chicago found that patients taking the highest dose of Celebrex at 400 milligrams twice a day tripled their chance of a heart attack or stroke compared with people taking a placebo. Those taking Celebrex twice daily at the 200- milligram dose doubled their risk of a heart attack. People with heart disease, high cholesterol, diabetes or who smoked also had an increased risk, the researchers said.

A more definitive assessment of Celebrex risks won’t come until 2013, when a $100 million study of 20,000 patients comparing Celebrex with the pain pills ibuprofen and naproxen is expected to be completed. Jani said the safety monitoring committee met recently and noted that the study could continue unchanged.

Celebrex had $2.3 billion in 2007 sales for New York-based Pfizer.

To contact the reporter on this story: Nicole Ostrow in New York at nostrow1@bloomberg.net.
Last Updated: November 11, 2008 10:54 EST

Source

Northwestern Mutual Life Insurance Company Settles Class Action

UPDATE: If you are a Northwestern Mutual Life Insurance Company policyholder who has questions or concerns about class actions in general, feel free to contact us to see if we can help. Call us at 601.366.1297 or submit your question/comment here. IF YOU HAVE QUESTIONS SPECIFIC TO THE NORTHWESTERN MUTUAL SETTLEMENT, PLEASE CLICK HERE.

Northwestern Mutual Life Insurance Company announced that it has settled a class action involving its marketing and sales of term life insurance. An article detailing the announcement is reprinted below.

Northwestern Mutual settles lawsuit

Associated Press
7:06 AM CST, November 13, 2008

MILWAUKEE – Northwestern Mutual Life Insurance Co. has agreed to settle a class action lawsuit for up to $92 million.

The lawsuit accused Northwestern Mutual of failing to pay dividends on certain term life policies and using improper sales and marketing practices.

The lawsuit was filed four years ago by a customer in California who said the insurer’s sales materials misled him about whether dividends would be paid on term life and disability insurance.

Northwestern Mutual denies the lawsuit’s allegations. Company spokeswoman Jean Towell says they decided to settle to avoid “the uncertainty and expense of litigation.”

The proposed settlement covers about 1.3 million current and 1.6 million former policy owners who purchased term life or disability coverage since 1981.

Source

Brian Herrington’s Guest Post On Settle It Now Negotiation Blog

Vickie Pynchon, who runs Settle It Now Negotiation Blog, one of the most recognized legal blogs around, was kind enough to allow me to write a guest post on her blog. The post can be found here. You should check out her blog; lots of good stuff on there.

I’ve also reprinted my article below.

Mediating? A Savvy Plaintiff’s Attorney Tells You How

by Guest Blogger Brian Herrington

Don’t Agree To Mediate Too Soon In The Litigation

The mediation of litigated cases involving personal or economic injury should mainly be about money. Unless the issues of law and fact have been fully fleshed out, mediation sessions get bogged down in contentions about ultimate facts and conclusions of law that neither side can “win.”

Let’s take a drug case in which the drug causes a signature disease that only has 3-4 causal connections. Until the defendant knows my client’s medical history and definitively understands that the only causal connection present in my client’s case is the drug at issue, the defendant cannot fully appreciate the strengths of the plaintiff’s case, leading to an unbridgeable divergence in the two sides’ valuation. On the other hand, if I’ve not yet conducted adequate discovery to learn that the drug didn’t contain the offending agent until after my client quit taking the drug, then I’m going to waste my time – and everyone else’s – by asking for 7 figures.

If the attorneys are making arguments that sound like summary judgment motions during a mediation, both parties are wasting their time. No one should proceed to mediate before they know what they agree on and what they disagree. Ideally, the parties should agree upon as many facts and legal issues as possible before sitting down to negotiate settlement.

Make Sure The Money Person Is There

I will no longer attend a mediation unless the individual authorized to write the settlement check is present. None of this, “We have to get on the phone and see what corporate says” for me. You do not want to mediate with defense counsel only. It’s much easier for an adjuster or other money person to hold tight at a number when he/she doesn’t have a plane to catch. In fact, one of the first things I ask the corporate representative at a mediation is, What time is your flight? This information usually tells me volumes.

Make Sure The Mediator Knows Who to Talk to Before the Mediation Begins

Assuming there’s only one plaintiff and one defendant, there are no less than four parties that the mediator may need to direct his/her attention to: (1) defense counsel (2) the corporate representative of the defendant (3) plaintiff’s counsel and (4) the plaintiff. In any given litigation, one or more of these parties could be the source of impasse. Usually my clients are very well-oriented on where we need to be money-wise heading into mediation. The occasion does arise, however, when I need the mediator to help me help my client understand that his or her expectations of recovery are unrealistic. On those occasions, I instruct the mediator confidentially that my client needs a little reality testing if the case is going to settle.

All of us sometimes have unrealistic expectations. I certainly can, as can defense counsel or the corporate representatives. The point is the mediator needs to know who needs to be talked to a little more than the others. I encourage any mediator with whom I work to accept confidential settlement letters. In these letters, I mention which parties I think might be barriers to settlement.

If you have a mediator who only talks to the lawyers, you’re probably in for a long and unsuccessful day. Or, given the situation, it may be the clients who are being hard-headed. In these instances, the mediator needs to talk right past the lawyers and speak directly to the clients. As a plaintiff’s lawyer, I won’t deal with a mediator who won’t talk directly to my client or the corporate representative.

The lawyers’ job is to represent their clients and the mediators job is to bring the lawyers together. If the lawyers are in the way, the mediator needs to ignore them for a while and deal directly with the clients. Ensure that the mediator you’ve agreed to will do this.

Before The Mediation Set A Time Limit For Real Progress

This last point is something that I’ve only started employing in the last few years, and it’s worked wonders. In a courteous and professional tone, I inform defense counsel that if we’ve not made sufficient progress by a certain time or within a certain number of hours – usually 2-3 – then I will leave. What constitutes “sufficient progress” is case-specific, and you’ll know it when you see it. I give this caveat to defense counsel so that there’s no misunderstanding at the mediation. If, by all reasonable measures, my case is worth 7 figures, I’m not going to spend 6 hours trying to get to 6 figures. I simply will not let that happen to me anymore.

By informing defense counsel ahead of time that I won’t stay more than a couple of hours unless I see real progress, I’ve managed to avoid many of the lowball offers that usually start the defense side of the mediation. Or, if I get a lowball offer, the numbers start increasing once I remind the mediator and defense counsel that I will leave if substantial progress isn’t made.

Of course, this point applies equally to plaintiff’s counsel. I can’t start off at $10 billion dollars like Dr. Evil with a law degree. I make sure that my offers are within reason so that I can be justifiably indignant if defense counsel starts playing games with the offers.

One Size Does Not Fit All

As I said at the beginning, there is no foolproof way for the plaintiff lawyer to approach mediation. There are numerous approaches and many depend on the parties involved. These are some of the broad categorical approaches that I take and they’ve worked for me. I hope that you find them useful as well. Happy mediating.

About The Author

Brian Herrington is the founding partner of Herrington Law, PA in Jackson, Mississippi. Licensed in Mississippi and Tennessee, Brian litigates consumer class actions, cases involving defective drugs and medical devices, and personal injury cases all over the country.

You can obtain more information about Brian’s practice by going to Herrington Law PA’s main website here. Brian blogs on numerous issues relevant to litigation at Mississippi Consumer Lawyer here. You can also follow Brian on twitter.

Brian Herrington Receives Favorable Review For Use Of Twitter

Recently, Greg Lambert at 3 Geeks And A Law Blog wrote a favorable post about my use of twitter in my law practice.

First, I appreciate the kind words. Second, this reinforces my opinion that twitter is yet another tool for a lawyer in both marketing his/her law practice as well as in continuing his/her legal education and staying on top of the latest developments in a related legal field.

Do Not Allow Your Legal Rights To Be Further Eroded

Please read the story below, reprinted in its entirety from the website of the Center for Justice & Democracy. The story is about contingency fees. Simply put, contingency fees allow lawyers to front the costs of litigation for clients who cannot afford to pursue their cases. The lawyer takes all the risk and does not get paid until the client gets paid.

Contingency fees are crucial to our civil justice system because they allow the courthouse to remain open for everyone regardless of how much money they have — remember, the courtroom is the only place on Earth where the poorest individual can stand on equal footing with the richest multi-national corporation. Contingency fee contracts must be upheld. We do not need judicial activism or legislation impinging on this vital entry point into the civil justice system.

If you hear of others talking about the evils of trial lawyers, remind them that trial lawyers and the contingency fee contract are the last line of defense for most individuals.

Judge Cuts Attorney Fees in Crash Award: Future Victims Could Pay

Imagine for a moment you are James McMillan—a forty-four-year-old former Fulton Fish Market worker in New York City and victim of the 2003 Staten Island Ferry crash which killed 11 people and injured scores more. On that horrible day, while standing near the ship’s bow, you are pinned facedown by debris and several bones in your spine are crushed, rendering you permanently quadriplegic. You now require the assistance of an aide for even the most basic activities. You also suffer migraine headaches and cannot regulate your body temperature, among other complications.

You know you need the services of a reputable attorney, but unfortunately, you are unable to pay for one since you have lost the use of your arms and legs and are totally unable to work. Luckily, Attorney Evan Torgan agrees to take your case on a standard contingency basis—that is, you pay nothing up front, and Torgan agrees to cover all litigation costs (which could total thousands, and perhaps even millions of dollars). In return, if you win, Torgan’s compensation will be one-third of your award. If you lose, Torgan will receive nothing.

The city initially offers to settle for a completely inadequate sum, but Torgan knows a lowball offer when he hears one—so he advises you to go to trial, and you agree. Following the trial, you are awarded 83 percent more than the city originally offered. But most importantly, you’re in a far better position to pay for the life-long expenses you will incur as a person who is completely paralyzed from the neck down.

Now put yourself in Attorney Torgan’s shoes. By any measure, you have done a magnificent job in obtaining justice for your client. Nevertheless, following the trial, the judge (Judge Jack B. Weinstein) inexplicably decides to reduce your fee to 20 percent—leaving you with roughly the same amount you would have received had you not invested your time and resources in preparation for trial, and simply accepted the city’s lowball offer.

Unfortunately, this is exactly what happened—and it could have a very chilling effect on the ability of future injury victims to obtain justice from the courts.

Simply put, if Weinstein’s decision is allowed to stand and/or signals some sort of new trend in judges inserting themselves into attorney/client fee agreements, attorneys may no longer be able to accept the risk of representing clients on a contingency. And even if they do, they’ll be tempted to settle immediately no matter how unfair the offer may be to the client, knowing that the resources they expend in preparation for a trial may never be recouped.

Thankfully, Weinstein stayed his judgment for 20 days to allow the parties to seek relief from the 2nd U.S. Circuit Court of Appeals. In the meantime, for the sake of injured people everywhere, let’s hope the 2nd Circuit responds appropriately to Judge Weinstein’s ridiculous fee ruling—by tossing it out with the other garbage.

Source

Herrington Law, PA Announces Its New Website

Please check out our new look here. At our website, you can read more about us and what we do to help consumers across the country.